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FIRM NAME


Section 6 of the PA states that the name under which the business is to be carried on is called the Firm Name.  partners may trade under any name they choose whether it be a combination of their own several names or a name merely descriptive of their business, so long as they do not thereby fraudulently imply that their business is identical with some other competing business.  Where the firm name does not consist of the true names of all the partners then the name must be registered under the Registration of Business Names Act.

The principle that a sole trader may carry on business either under his own name or under a fancy name applies equally to partnerships and the partners may adopt any name which is not calculated to deceive either by diverting customers from some other person or by causing confusion between the two businesses for example by suggesting that their business is an extension branch or agency or otherwise connected with the old business.

Reference may be made to the case of Ewing V. Buttercup Margarine Co. Ltd. [1917]2 Ch.d 1 in this case the Plaintiff one Andrew Ewing had since 1904 carried on a business dealing with Margarine under the name and style of  Buttercup Dairy Co.  The business was largely carried on in Scotland and to some extent in the North of England but it was gradually extending southwards.  The Defendant company was registered in November 1916 and as soon as the Plaintiff heard of it he complained promptly and sought an injunction to restrain the Defendant from carrying on business under the name Buttercup Margarine Co. Ltd.  He argued that such a name would likely cause confusion and serious injury to his business.  It was held that the name chosen by the Defendant so nearly resembled that under which the Plaintiff was trading that people who had dealings with the Plaintiff were likely to believe that the Defendant’s business was a branch of or was connected with the Plaintiff’s business.  An injunction was therefore granted.

Where the intention of the party’s is therefore expressly to deceive the courts will restrain him from using a name similar to that in existence and to that extent the court may also go as far as preventing persons from trading even under their own proper names.  Refer to the case of Croft V. Day [1843] 7 Bear 84 in this case in 1801 Charles Day and one Martin entered into a partnership as manufacturers of a substance called ‘Blacking’.  For a period of 21 years they carried on their business at a place called 97 High Holborn.  In 1808 Martin transferred his interests to Day who was given liberty to use Martin’s name for the remainder of the 21 years.  This term was afterwards extended to 25 years from 1820.  Martin died in 1834 and Day died in 1836 but the business was carried on in the name of Day and Martin by the Executors of Day.  The Defendant in this case Day who was the testator’s nephew obtained the authority of one Martin to use his name in business.  He thereupon set up a business for the manufacture of ‘Blackie’ at 901/2 Holborn Hill.  They sold Blackie in similar bottles to those used by the earlier firm of Day and Martin and those used by the Executors of Day.  The court held that no man has a right to sell his own goods as the goods of another.  Consequently although the Defendant had a right to carry on the business of a Blackie manufacturer honestly and fairly and had a right to the use of his own name and although the court will not do anything to bar him from the use of that or any other name calculated to benefit himself in an honest way nevertheless he must be prevented from using his name in such a way as to deceive and defraud the public and thereby obtain for himself at the expense of the Plaintiff an undue and unfair advantage.

The act of a new trader carrying on a new business in the name of an old trader is not in itself unlawful unless a new trader is doing so for the fraudulent purpose of passing on his goods as the goods of his rival.  However, even in the absence of a fraudulent intention if it is evident that the public will be deceived and if the effect of such a deception is that the goods of a new trader will be purchased in mistake for the goods of the older trader, then the new trader will be estopped from using that name which is likely to cause confusion.  Refer to the case of North Cheshire & Manchester Brewery Co. Ltd V. Manchester Brewery Co. Ltd [1899] A.C 83 here the Manchester Brewery Co. had carried on business under that name for about 8 years.  The Appellants bought an old business called North Cheshire Brewery Ltd and without any intention to deceive they got themselves incorporated and registered under the name North Cheshire & Manchester Brewery Co. Ltd.  The Respondent objected the use of that name and it was held that even if there was no fraudulent intention on the part of the Appellants nevertheless the public were unlikely to be deceived into thinking that the two companies had been amalgamated whereby they might place their orders with a new company and thereby cause injury to the old company.  On those facts an injunction was granted against the Appellants.

Refer also to Thomas Turton & Sons V. John Turton & Sons [1889] 2 Ch. 128 here it was held that there was no possibility of confusion in this two business names.

If the new person or firm is not using his own name that is evidence that he is acting in bad faith.  But, if there is a likelihood of the two firms being confused it matters not that there is no bad faith an injunction will be granted.

The firm name does not constitute the firm a legal entity as in the case of a company.  Therefore if a contract is entered into in the firm name the contract is construed and takes effect as if the names of all the members were substituted throughout for the firm name.  the firm name may be used in  litigation so the parties maybe sued in that name or they may sue in that name.
p �Z `�^ /span>It must be an act for carrying on business in the usual way;
The act must be done by the partner acting as a partner and not as a private 

 
 
 

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